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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15203
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-20441-KMM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORLANDO OLVER BUSTABAD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 6, 2018)
Before MARCUS, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
Orlando Olver Bustabad appeals his 168-month sentence after he pleaded
guilty to one count of conspiracy to commit healthcare and wire fraud, in violation
of 18 U.S.C. § 1349. On appeal, he argues that the district court clearly erred by
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imposing a 2-level enhancement for use of “sophisticated means,” U.S.S.G. §
2B1.1(b)(10)(C), during the commission or concealment of the offense. After
thorough review, we affirm.
A district court’s finding that the defendant used sophisticated means is a
finding of fact reviewed for clear error. United States v. Barrington,
648 F.3d
1178, 1199 (11th Cir. 2011). Review for clear error is deferential, and we will not
disturb a district court’s findings unless we are left with the definite and firm
conviction that a mistake was committed. United States v. Ghertler,
605 F.3d
1256, 1267 (11th Cir. 2010). An error that does not affect the sentence imposed is
harmless. United States v. Lozano,
490 F.3d 1317, 1324 (11th Cir. 2007).
The Guidelines provide for a two-level enhancement if an offense “involved
sophisticated means and the defendant intentionally engaged in or caused the
conduct constituting sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C). The
commentary to § 2B1.1 defines “sophisticated means” as “especially complex or
especially intricate offense conduct pertaining to the execution or concealment of
an offense.” U.S.S.G. § 2B1.1, comment. (n.9(B)) (2016). Conduct such as hiding
assets or transactions “through the use of fictitious entities, corporate shells, or
offshore financial accounts” ordinarily indicates sophisticated means.
Id. There is
no requirement that each of a defendant’s individual actions be sophisticated.
Ghertler, 605 F.3d at 1267. Rather, it is sufficient if the totality of the scheme was
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sophisticated.
Id. In looking at the totality of the scheme to determine its
sophistication, the court may consider the number of distinct and repetitive acts
that the defendant undertook throughout the scheme, the length of the scheme, and
the loss inflicted by it. United States v. Feaster,
798 F.3d 1374, 1381 (2015).
In United States v. Campbell, a tax evasion case involving the nearly
identical § 2T1.1(b)(2), defendant Campbell, the former mayor of Atlanta, used
campaign accounts and credit cards issued to others in order to conceal cash
expenses and the extent of his tax fraud.
491 F.3d 1306, 1309, 1315 (11th Cir.
2007). We upheld the district court’s finding of sophisticated means, explaining
that using “a straw man or campaign fund” was no different than hiding assets or
transactions through shell corporations or offshore accounts.
Id. at 1316.
Here, the district court did not clearly err in finding that, in perpetrating a
healthcare and wire fraud scheme, Bustabad intentionally engaged in conduct that
constituted sophisticated means. See U.S.S.G. § 2B1.1(b)(10)(C). As the record
reveals, Bustabad, his father, and their coconspirators performed numerous
different and repetitive acts in order to perpetrate the fraud. See
Feaster, 798 F.3d
at 1381. For starters, Bustabad and his father used nominee owners to hide their
ownership of nine of pharmacies. The nominee owners incorporated the
pharmacies and opened bank accounts in their names to receive payments from
Medicare, which concealed Bustabad’s and his father’s identities. See Campbell,
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491 F.3d at 1316. Bustabad and his father collected and provided compromised
Medicare beneficiary data and compromised doctor identification information to
submit fraudulent claims. Medicare then paid the claims to the pharmacies and the
nominee owners withdrew the funds via checks, cash counter withdrawals at
banks, or check cashing for themselves, Bustabad, and his father. The total scheme
lasted 4 years and it caused an intended loss of $10,678,160 and an actual loss of
$4,857,235. See
Feaster, 798 F.3d at 1381. On this record, as the district court
explained, the sophisticated-means enhancement was warranted based on the
number of people involved in the scheme, the length of the scheme, the quickness
with which the nominee owners could get in and out of the corporations they set
up, and the intent to cause over $10 million in loss.
Moreover, the district court twice explained during the sentencing hearing of
Bustabad and his conconspirators that, even if the sophisticated-means
enhancement did not apply, it would impose the same sentence. Thus, even if
there was error in applying the enhancement, the error was harmless. See
Lozano,
490 F.3d at 1324. Accordingly, we affirm.
AFFIRMED.
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